Green v Chief of Army

THE LEGISLATION 15 Section 56 of the DFDA relevantly provides that: "(1) A person who is a defence member … is guilty of an offence if: (a) the person makes a statement, (whether orally, in a document or in any other way); and (b) the statement: (i) is false or misleading; or (ii) …; and (c) the person knows of the matter mentioned in paragraph (b); and (d) the statement is made in, in connection with, or in support of, an application for (i) a … payment … of money or an allowance; or (ii) …; (iii) … for the person …; and (e) the application arises out of, or is based on, membership of, or service in or in connection with, the Defence Force." 16 Section 135.2(1) of the Criminal Code provides that: "(1) A person is guilty of an offence if: (a) the person engages in conduct; and (aa) as a result of that conduct, the person obtains a financial advantage for himself or herself from another person; and (ab) the person knows or believes that he or she is not eligible to receive that financial advantage; and (b) the other person is a Commonwealth entity. Penalty: Imprisonment for 12 months." Section 135.2(1A) provides that absolute liability applies to the element of the offence prescribed by s 135.2(1)(b). 17 Relevantly, s 9.5 of the Criminal Code provides that: "(1) A person is not criminally responsible for an offence that has a physical element relating to property if: (a) at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and (b) the existence of that right would negate a fault element for any physical element of the offence. (2) A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist. (3) …"

THE JUDGE ADVOCATE'S RULINGS 18 The learned Judge Advocate ruled that s 9.5(2) of the Criminal Code had no application to the charge of knowingly making a false statement. He held that, for s 9.5(2) to have application, it was necessary that it be established that Major Green was under a mistaken belief that, as at 9 January 2008, he had a proprietary or possessory right to (at least) rental allowance as a member categorised MWD(U) and that the giving of an affirmative answer to question 7 on the form arose necessarily out of the exercise of that proprietary or possessory right. 19 The defending officer had identified Major Green's relevant mistaken belief as being that he "had a right to acquire that [rental] allowance despite ticking the box that was false." 20 The Judge Advocate rejected the contention that Major Green laboured under this mistaken belief on 9 January 2008. He did so for a number of reasons. They were: "First, the defendant's evidence fell well short of an actual belief he was entitled to be classified as MWD(U) (and therefore entitled to be paid the corresponding allowances). His evidence was that he did not seek the classification or understand why he had been classified MWD(U) and he was seeking a review of his categorisation for a redress of grievance. He knew what MWD(U) meant. He knew that the allowances payable to a member categorised MWD(U) were made on the basis that the member was living alone, but he was living with his dependant wife (who was his only dependant). Because he wasn't 'comfortable' with receiving these allowances he put them into a separate account. The defendant did say that he believed he was entitled to these allowances because he was classified MWD(U). But in the context of a claim of right defence, in my opinion the question is not whether the defendant believed that a member classified MWD(U) is entitled to those allowances, but rather did the defendant believe he was entitled to be categorised MWD(U)? The claim that the defendant made was for [rental allowance] as a member classified as MWD(U). If he did not believe he was properly categorised as MWD(U) then he could not have believed he had a right to the corresponding allowances. His evidence is incompatible with the required believe, ie instead of asserting an actual belief that he was entitled to [rental allowance] as a member MWD(U), his state of mind was that he doubted that he was properly classified as MWD(U). This is not surprising given that he knew that MWD(U) was the category for members who were separated from their dependants, yet he was living with his dependant. Second, as at 9 January 2008, the Commonwealth was not indebted to the defendant for [rental assistance] with respect to the subject premises nor did the defendant assert that he believed, on 9 January 2008, that he had a present entitlement to money from the Commonwealth in the form of [rental allowance] as a member classified MWD(U). His classification MWD(U) commenced with effect from 10 February 2008. I am not aware of any decision under the Code or at common law in which a belief as to a future claim has been held as capable of amounting to a claim of right. The defendant did not give evidence that he had an actual belief that on 9 January 2008 the Commonwealth owed him money for [rental allowance] as a member MWD(U)." The evidentiary findings which were relied on by the Judge Advocate in making this ruling were not challenged on appeal. 21 In respect of the obtaining of financial advantage charges the Judge Advocate concluded that s 9.5(1) need not be relied on by Major Green: he could not be convicted of these charges unless the prosecution established that he knew or believed, at relevant times, that he was not entitled to receive the particular allowance. That being so s 9.5(1) was a superfluous provision.

THE APPEAL GROUNDS 22 Major Green appealed on two grounds. The first was that the learned Judge Advocate had erred in ruling that the "honest claim of right" defence was not available in respect of any of the charges. The second ground, which ultimately was but faintly pressed, was that the convictions were unsafe and unsatisfactory having regard to the evidence.

CONSIDERATION 23 We agree with the Judge Advocate, for the reasons which he gave, that the "claim of right" defences were either not available or superfluous in the circumstances. 24 The defence to a charge of knowingly making a false statement, provided for in s 9.5(2) of the Criminal Code, would only have been available to Major Green had it been open, on the evidence, to find that, on the day on which he signed the application form, he was under a mistaken belief that he had a proprietary or possessory right to the rental and associated allowances as a member categorised MWD(U). On that date he had not been classified as MWD(U) and he knew that a service member was not entitled to be so categorised unless he or she was living alone. He knew that he was not proposing to live alone at the Toowong property. In these circumstances he could not establish that, in answering Question 7 as he did, he was exercising any proprietary or possessory right to receive the allowances. It may be that he considered that he was entitled to another allowance which would have been payable had approval been given for him and his wife to live together in the Brisbane area. It cannot, however, be accepted that the offence of knowingly making a false statement necessarily arose out of the exercise of such a right, even if it might properly be characterised as a proprietary right. 25 Section 56(1) bears certain similarities with s 83A of the Crimes Act 1958 (Vic). That section creates the offences of making and using false documents with certain prescribed intentions, namely, that the documents be used to induce the victim to accept it as genuine or the intention to induce the victim, by reason of his or her so accepting it, to do or not to do an act to his or her own (or another persons) prejudice. In R v Gatzka [2004] VSCA 121 the Victorian Court of Appeal rejected a submission that a claim of right was available as a defence to a charge under s 83A. Chernov JA (with whom Charles and Eames JJA agreed) said that: "Such an offence is not concerned with a claim to property and does not have, as an ingredient of it, the requirement to establish a dishonest intent. The element of mens rea of a s 83A offence consists of no more than the two-fold intention to which I have referred and does not, as I have said, involve the element of fraud. Thus, once the Crown establishes that the offender made the false document and used it with the intentions set out in the legislation, its case under s 83A(1) and (2) is ordinarily made out, notwithstanding that the offender may have also intended to use the document to obtain property which he believed belonged to him. If anything, it seems to me, the pursuit of the claim to the property in this way arguably demonstrates the presence of relevant intentions in the offender." Similarly, s 56(1) of the DFDA is not to be treated as a property offence, the mens rea of which is a dishonest intent and, in respect of which, a "claim of right" defence is available. The offence created by s 56(1) is made out if the person making the relevant statement knows that it is false or misleading. 26 The defence provided for in s 9.5(1) of the Criminal Code is, as the Judge Advocate held, superfluous in a case such as the present. Major Green could not have been convicted of the three obtaining financial advantage charges unless the prosecution had satisfied the Court Martial that he knew or believed that he was not entitled to receive the various allowances during some or all of the period during which he received them. 27 In R v Turnbull (1943) 44 SR (NSW) 108 at 109 Jordan CJ (with whom Davidson and Street JJ concurred) said that: "… it is also necessary at common law for the prosecution to prove that he knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged." Similar principles apply under the Criminal Code: see Ostrowski v Palmer (2004) 218 CLR 493 at 511 (per McHugh J). 28 Major Green could not have been convicted under s 135.2(1) of the Criminal Code unless the prosecution had established, beyond reasonable doubt, that during the period during which he received the allowances, he knew or believed that he was not eligible to receive them. This element of the offence could not have been made out if Major Green believed that he was entitled, in accordance with the provisions of the PACMAN, to receive them. 29 There was ample evidence before the Court Martial to warrant a finding that Major Green believed that he was not entitled to the allowances. He knew what the criteria were for categorisation of a service member as MWD(U) or MWD(S). He knew that such a categorisation was necessary before the allowance was payable. He knew that he did not satisfy those criteria and, in particular, the requirement that he be living separately from his wife for service-related reasons. 30 In these circumstances he could not make out a defence of right on the basis that he had been advised to apply to be categorised as MWD(U) or that he believed that he was entitled to receive rental allowance under criteria which applied when two service members were living together. 31 We doubt that Major Green was given wrong advice by DHA to the extent that he was told to apply for the categorisation in order for him to obtain a rental allowance for a property in the Brisbane area. The advice was given on the assumption, albeit mistaken, that his wife's part ownership of the property near Amberley precluded both of them from receiving rental allowance when living under the same roof. Even had he been advised wrongly that he was entitled to be categorised as MWD(U), and, accordingly, entitled to the rental and other allowances, this would not have provided a defence: see Ostrowski at 516 (per McHugh J) and 527 (per Callinan and Heydon JJ).

NEW EVIDENCE 32 Major Green sought to tender a Minute which had been sent to him on 10 December 2010 by the Chief of Army in response to Major Green's e-mail of 14 July 2010. 33 Upon receiving that e-mail the Chief of Army had caused an investigation to be carried out as to Major Green's entitlement to be provided with service housing in the Brisbane area in which he could have lived with his wife. Those enquiries led the Chief of Army to conclude that Major Green had been given incomplete (and, therefore, misleading) advice about his entitlements. 34 In his Minute the Chief of Army advised Major Green that: "2. On receipt of your email, my staff reviewed your case and were concerned that the underlying advice you were not entitled to a Service Residence (SR) in Brisbane was incorrect. DGPERS-A and Defence Housing and Removal Policy staff met to discuss your case, and are in agreement that advice given to you at the time of your request for a Service Residence as MWD was incomplete and did not cover all options available under Defence policy. 3. The advice provided to you only considered your wife, FLTLT Anita Green's, housing entitlement and not your own. By virtue of the fact that your wife had her own home in her posting locality, she was not entitled to housing assistance. However, as you were in a different posting locality, and had your wife's Commanding Officer agreement (sic) for her to live outside of her posting locality, you would still have had a housing entitlement. Had this occurred, your wife should have been able to live with you and both of you remain MWD. As this advice was not provided to you, and you were advised to go MWD(U), the entitlements and procedures followed after the MWD(U) categorisation were correct as this was based on your categorisation. 4 … 5 I trust that the advice I have provided validates the staunch position you have held throughout, which is that you were justifiably entitled to be categorised MWD and live with your wife within your position locality. I restate my commitment to providing members with work life balance and thank you for the opportunity to address your situation." 35 The respondent opposed the application for the Tribunal to receive and consider the Minute. 36 Sub-section 23(2) of the Defence Force Discipline Appeals Act 1955 (Cth) governs the receipt and consideration by the Tribunal of evidence which was not placed before the Service Tribunal. It provides that: "(2) Subject to subsection (5), where in an appeal it appears to the Tribunal that there is evidence that: (a) was not reasonably available during the proceedings before the court martial or the Defence Force magistrate; (b) is likely to be credible; and (c) would have been admissible in the proceedings before the court martial or the Defence Force magistrate; it shall receive and consider that evidence and, if it appears to the Tribunal that the conviction or the prescribed acquittal cannot be supported having regard to that evidence, it shall allow the appeal and quash the conviction or the prescribed acquittal." Sub-section (5) is of no present relevance. 37 We declined to receive the Minute. It formed part of an exchange between Major Green and the Chief of Army which occurred well after the events that led to the laying of the charges. It expressed the Chief of Army's opinion that Major Green had been given misleading advice as to his entitlement to service housing in the Brisbane area. The advice that was given was that Major Green should "go MWD(U)", that is, to obtain housing in the Brisbane area in which he would live alone. Once Major Green had determined to act on that advice the consequence was, as the Chief of Army said, that "the entitlements and procedures followed after the MWD(U) categorisation were correct as this was based on your categorisation." Such an expression of opinion could not have assisted Major Green at trial. On the contrary, it made clear that, once he had adopted the option of choosing a categorisation which made the payment of allowances dependent on him living alone, the proper procedures had been followed by DHA. Had DHA been advised about the true situation, the allowances would not have been paid.

DISPOSITION 38 Major Green's appeal must be dismissed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey, White & Duggan.